Recently, Zhao Xing, a lawyer acting on behalf of a laborer v. a shared bicycle operation and maintenance enterprises (hereinafter referred to as “Company A”) to confirm the labor relationship dispute, in the arbitration stage lost, the first instance intervention successfully tore off the “fake outsourcing” coat, restore the “real labor” nature, and finally settled the case by mediation. “The case not only safeguarded the legitimate rights and interests of the workers, but also added a strong example of the protection of the rights and interests of workers in new forms of employment (hereinafter referred to as ”new forms of employment").

　　In this case, Yang was engaged in the operation and maintenance of shared bicycles at Company A since November 2021, and was responsible for scheduling and transportation of shared bicycles, moving and organizing them, and cleaning up advertisements. During the work period, Yang was required to perform tasks in strict accordance with the schedule, routes and operation specifications set by Company A, accepting the company's dual supervision through the online platform and on-site management personnel. However, Company A did not sign a formal labor contract with Yang, nor did it pay him social security, but instead allowed Yang to sign a contracting service agreement with an outsourcing company in order to circumvent the labor relationship.

　　In February 2024, Yang suffered a lumbar injury while carrying a shared bicycle, and was diagnosed in the hospital with degenerative changes in the lumbar spine, and a mildly bulging lumbar 3-sacral 1 intervertebral disc. During the injury period, Yang continued to work with the injury until May 2024, when Yang was unable to continue working due to the aggravation of the lumbar injury, so she took a leave of absence to recuperate at home for one month. In June 2024, Company A notified Yang to return to work, but Yang was unable to return to work due to the untreated lumbar injury, so Company A notified Yang that she had been dismissed from her job.

　　As there was no labor contract or social security payment, Yang was unable to identify the injury and request for compensation for the injury, and Company A not only did not give Yang any compensation for the medical expenses, but even dismissed Yang. After unsuccessfully negotiating with Company A for the medical expenses, Yang decided to file a labor arbitration requesting for a ruling to confirm the labor relationship with Company A and requesting for a ruling on the payment of compensation for the unlawful termination of the employment of Company A, and the payment of compensation for the medical expenses.

　　At the arbitration stage, Company A argued that the enterprise did not provide vehicle operation and maintenance work (after checking the business license of the enterprise business scope only contains technical services, technology development, etc.), and the two sides have no labor relationship. Ltd. (an affiliate of Company A) signed a service outsourcing agreement with an enterprise management company, an outsider, which agreed that an enterprise management company would provide vehicle operation and maintenance service outsourcing services for a travel service company, and Yang signed a contract service agreement with an enterprise management company, which has issued a statement, so Yang has no labor relationship with our company. Ltd. has issued a statement, so Yang has no labor relationship with our company. On Yang's side, he provided WeChat screenshots reflecting his daily management behavior and the driving license of the electric tricycle provided by Company A for his use (the driving license showed that the owner of the vehicle was Company A), etc. However, since it could not be proved that Company A's scope of operation included vehicle operation and maintenance and the person who managed Yang was an employee of Company A, the Arbitration Commission finally rejected all of Yang's arbitration requests.

　　After losing the arbitration, Yang found the King&Capital lawyers Zhao Xing to represent the case. After accepting the commission, the contractor lawyer studied the details of the case in depth and collected evidence, including Yang's task assignment records during the work period, payroll transfer vouchers, and WeChat communication records with the management personnel. However, there was no direct and strong evidence to prove that Company A managed Yang and that Company A's business scope included vehicle operation and maintenance.

　　After further careful combing of the case, the contractor lawyer found that Yang Mou still retained the electric tricycle provided by company A, and company A is anxious to get back to the vehicle, so remind Yang Mou in the return of the vehicle must require company A to provide a written explanation of the material. After the company sent before the company is responsible for the management of yang mou and other bicycle operation and maintenance personnel in charge of zhou mou to retrieve the electric tricycle, in order to better clarify the identity and legal status of the two sides, the contractor lawyers to help the two sides to draw up a company authorization power of attorney (power of attorney to write “zhou mou in the company's position in the operation and management of vehicles” and “the electric tricycle”). “The electric tricycle is Yangmou in A company in the period of use”) to A company supervisor Zhoumou. Eventually, ZhouMou with the seal after the power of attorney, in the name of company A to retrieve the electric tricycle, and the seal after the power of attorney to YangMou, and the power of attorney has become the key to the success of this case overturned.

　　Court hearing, the lawyer pointed out to the court, A company and Yang are in line with the laws and regulations of the subject qualification, A company of Yang for the actual management, and there is evidence to prove that the actual scope of A company's operations include vehicle operation and maintenance, more critical is A company has been in the power of attorney in the self-confessed and Yang has a labor relationship, so the A company should bear the corresponding legal responsibility. At first, company A was very surprised, and even did not know when the power of attorney, but in the face of the white paper and red seal, company A can't argue, can only pay Yang a certain amount of money after the expenses, to mediate the end of this dispute. The successful mediation of this case, not only for Yangmou to fight for the rights and interests due, but also for similar new labor relations disputes provide an example of resolution.

　　Currently, with the development of new industry economy, the scale of new industry relying on the Internet platform has been expanding, takeaway riders, shared bicycle operators and maintenance personnel as a typical representative of new industry practitioners, the protection of their legitimate labor rights and interests has also triggered an increasingly wide range of concerns. However, the determination of labor relations in new industries is quite complex, because compared with traditional industries, new industries employ relatively flexible labor methods, work autonomy is stronger, the subordination between employees and service enterprises is relatively hidden, so in the form of new industries, how to determine the labor relations between the workers and the employer is a major difficulty in the agency of this type of cases.

　　This case is a typical employer and the outsourcing company through the “false outsourcing” form of cooperation, to avoid the employer's obligations of illegal labor behavior, the contractor lawyer is through the tear off the “false outsourcing” coat, and finally restore the “true labor” nature, and maintain the “true labor” nature. The essence of “labor”, safeguard the legitimate rights and interests of workers. In practice, there are many other forms of circumvention of the real labor relationship, such as signing labor contracts, cooperation agreements, inducing workers to register as self-employed, reverse dispatch, etc., and workers should pay attention to distinguishing between them. After joining the company, workers should urge the employer to sign an employment contract and read the terms of the contract carefully; see whether it is an employment contract or a labor contract or other types of agreements that have been signed, and if there is any disagreement, raise it promptly. In the event of a labor dispute, in the absence of a written labor contract, it is very important for the worker to retain evidence. To prove the existence of a labor relationship, you can provide evidence related to when you applied for a job or joined a company, as well as evidence related to the period of contract performance, such as emails for submitting resumes, interview notices, and chatting records of WeChat and other online tools related to the work, salary transfer vouchers, attendance records, work permits issued by the employer, work uniforms, and other evidence capable of proving the identity of the employer.

Translated with DeepL.com (free version)